STATE of North Carolina
v.
John Lee EDWARDS.
No. 106.
Supreme Court of North Carolina.
November 26, 1974.*791 James H. Carson, Jr., Atty. Gen. by Rafford E. Jones, Asst. Atty. Gen., Raleigh, for the State.
F. Lloyd Noell, Hillsborough, for defendant.
LAKE, Justice.
There is no merit in the defendant's assignment of error directed to the denial of his motion for the summoning of jurors from another county, and the denial of his alternative motion that no jurors be chosen from the Carrboro area of Orange County.
*792 G.S. § 9-12(a) provides, "On motion of any party or the State, or on his own motion, any judge of the superior court, if he is of the opinion that it is necessary in order to provide a fair trial in any case, * * * may order as many jurors as he deems necessary to be summoned from any county or counties in the same judicial district as the county of trial or in any adjoining judicial district." (Emphasis added.) The statute, obviously, places this matter in the sound discretion of the judge of the Superior Court. State v. Yoes and Hale v. State, 271 N.C. 616, 641, 157 S.E.2d 386; State v. Porth, 269 N.C. 329, 336, 153 S.E.2d 10; State v. Allen, 222 N.C. 145, 22 S.E.2d 233. The record discloses no basis whatever for finding that the denial of either of these motions constituted an abuse of discretion by the trial judge.
The defendant was twice before tried and convicted of this offense, each of which former convictions was set aside and a new trial ordered by this Court. State v. Edwards, 284 N.C. 76, 199 S.E.2d 459; State v. Edwards, 282 N.C. 201, 192 S.E.2d 304. In each instance, the ground upon which the new trial was ordered was the admission in evidence, over objection, of the defendant's confession to police officers, obtained through interrogation which this Court deemed improper. In the third trial, now before us for review, the defendant's confession to the officers was not introduced in evidence or in any way mentioned in the presence of the jury.
In support of his motions for the summoning of a special venire from another county, and alternatively, for the exclusion of prospective jurors from the Carrboro area, the defendant contends that the former trials were given extensive newspaper publicity and were the subject of general conversation in Orange County. The record contains no evidence whatever as to the extent or nature of such publicity and nothing in the record indicates that any juror at the third trial heard any discussion of the case, saw any newspaper account of it or had in any way formed an opinion concerning the defendant's guilt. The record does not contain a transcript of the voir dire examination of any juror. It does not appear in the record that the defendant exhausted his peremptory challenges or that any challenge for cause by him was not allowed.
There was no error in the denial of the defendant's motion for a judgment as of nonsuit (referred to in the defendant's brief as a motion for a directed verdict of not guilty) made at the close of the State's evidence and renewed at the close of all the evidence.
It is elementary that upon such a motion the trial judge is required to take the evidence for the State as true, to give to the State the benefit of every reasonable inference to be drawn therefrom and to resolve in the favor of the State all conflicts, if any, therein. State v. McNeil, 280 N.C. 159, 185 S.E.2d 156; State v. Vincent, 278 N.C. 63, 178 S.E.2d 608; State v. Primes, 275 N.C. 61, 165 S.E.2d 225; State v. Goines, 273 N.C. 509, 160 S.E.2d 469; State v. Overman, 269 N.C. 453, 468, 153 S.E.2d 44; State v. Thompson, 256 N.C. 593, 124 S.E.2d 728. There is in the record abundant evidence to support findings that Mrs. Lloyd was murdered, that the crime was perpetrated with brutal cruelty, that the defendant was left by his companions, afoot, in the vicinity of Mrs. Lloyd's home after midnight, less than 12 hours before her body was discovered, and that the defendant told his girl friend that he entered Mrs. Lloyd's home through a window and, in an attempt to commit rape upon her, choked her until she stopped struggling and thereafter stole coins from her dresser drawer. Thus, the evidence for the State was sufficient to support a verdict that the defendant was guilty of the offense with which he was charged, and the denial of the motion for judgment as of nonsuit was proper.
There was no prejudicial error in the court's instruction to the jury concerning the meaning of reasonable doubt. After *793 instructing the jury that the State must prove the defendant guilty beyond a reasonable doubt, the court said:
"When I speak of a reasonable doubt, I mean a possibility of innocence based on reason and common sense arising out of some or all of the evidence that has been presented, or lack of evidence, as the case may be. It is not a vain, imaginary, fanciful or mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt, nor is it a doubt suggested by the ingenuity of counsel or by your own ingenuity not legitimately warranted by the evidence, nor is it one born of merciful inclination or disposition to permit the defendant to escape the penalty of the law, or one prompted by sympathy for him or those connected with him. If after weighing and considering all of the evidence you are fully satisfied and entirely convinced of the defendant's guilt, you will be satisfied beyond a reasonable doubt. On the other hand, if you have any doubt based on reason and common sense, arising from the evidence in the case, or lack of evidence, as to any fact necessary to constitute guilt, and cannot say that you have an abiding faith to a moral certainty in the defendant's guilt, you would then have a reasonable doubt and it would be your duty to give the defendant the benefit of that doubt and to find him not guilty."
The term "reasonable doubt" is more easily understood than defined. Unless he is requested to do so, the trial judge is not required to define "reasonable doubt" in his instructions to the jury and, if he undertakes to define it, he is not limited to the use of an exact formula. State v. Shaw, 284 N.C. 366, 200 S.E.2d 585; State v. McClain, 282 N.C. 396, 193 S.E.2d 113. The instruction here given is in substantial accord with definitions heretofore approved by this Court. See: State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133, and cases there cited; State v. Schoolfield, 184 N.C. 721, 114 S.E. 466.
In State v. Bryant, 282 N.C. 92, 191 S.E.2d 745, we considered a charge containing the first sentence of the one here given, the sentence to which the present defendant's assignment of error is specifically directed. We disapproved the use of the phrase "possibility of innocence" as synonymous with "reasonable doubt." We concluded, however, that this was an instruction more favorable to the defendant than that to which he was entitled and the error was, therefore, not prejudicial. We adhere to that view.
The defendant contends that, in violation of G.S. § 1-180, the trial judge improperly expressed an opinion in the following portion of his instructions:
"The State contends and the defendant denies that from the evidence which the State has presented you should find in this case beyond a reasonable doubt that the defendant entered the house of Mrs. Lloyd with the intention either to steal the goods or monies of Mrs. Lloyd or to rape her, with that intention at that time, one or the other or both and further the State contends and the defendant denies that the defendant was going about one or the other felony or attempting one or the other of the two felonies, at the time of the killing of Mrs. Lloyd * * *." (Emphasis added.)
The defendant contends that the italicized portion of this instruction was an expression of an opinion by the court that Mrs. Lloyd was killed. We find no merit in this assignment of error. We think it obvious that the court was merely stating the contentions of the parties and it is inconceivable that the jury would otherwise so construe the statement. No error in this statement of contentions was called to the attention of the court at the time. "[I]t is a general rule that objections to the charge in reviewing the evidence and stating the contentions of the parties must be made before the jury retires so as to afford the trial judge an opportunity for correction; otherwise *794 they are deemed to have been waived and will not be considered on appeal." State v. Gaines, 283 N.C. 33, 194 S.E.2d 839. It is totally unrealistic to characterize the above quoted instruction as an expression of an opinion by the court that the jury should find, as a fact, that Mrs. Lloyd was killed. Both before and after the instruction in question, the court plainly instructed the jury that in order for it to find the defendant guilty, it must find beyond a reasonable doubt that the defendant intentionally choked Mrs. Lloyd and thereby proximately caused her death.
The defendant's final contention is that in several specified instances the court, over objection, permitted witnesses for the State to testify in response to leading questions by the prosecuting attorney. It would serve no useful purpose to examine each of these alleged errors separately. In some instances, the questions were not leading. In others, it elicited only repetition of previous testimony. In no instance do we find prejudicial error. "Traditionally the rulings of the judge on the use of leading questions are discretionary." Stansbury's North Carolina Evidence, Brandis Revision, § 31, p. 85. We find no merit in this assignment of error.
G.S. § 14-17 provides, "A murder which * * * shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree." The proper sentence to be imposed upon one convicted of murder in the first degree, committed prior to 18 January 1973, is a sentence to imprisonment for life. State v. Waddell, 282 N.C. 431, 194 S.E.2d 19.
Three times this defendant has been convicted of the murder in the first degree of Mrs. Lloyd. Twice this Court has set aside the conviction and granted a new trial for error in the admission of evidence. At the third trial, which is involved in the present appeal, those errors were not repeated and the record discloses no other error prejudicial to the defendant so as to entitle him to a new trial. There was no error in the admission of the testimony of the defendant's girl friend, Susan Dark, who recounted to the jury the defendant's confession to her that he strangled Mrs. Lloyd in an attempt to commit rape upon her. The credibility of this evidence was for the jury. The witness was subjected to extensive cross-examination by his able court-appointed counsel, experienced in the practice of criminal law, who represented him at all three trials. In an effort to discredit the testimony of this witness, the defendant's counsel properly developed in detail her own criminal record. The jury, nevertheless, believed her testimony concerning the defendant's statement to her. It was the proper function of the jury to determine the credibility of her testimony.
No Error.